The title of this article is quoted from an opinion issued by Judge Richard A. Posner on May 22, in the case of Apple, Inc. v. Motorola, Inc. Judge Posner, of the 7th Circuit, is sitting by designation as the trial judge.
Judge Posner’s opinion applies the Daubert principles to expert reports and testimony. He sets out a number of points that should be kept in mind as experts are readied for trial and then applies them when ruling on Daubert motions. Interestingly, his analysis seems to be contrary to the way experts typically prepare for trial, as noted below.
According to the court, in the real world, Napper would have consulted an independent third party to obtain the information needed to formulate an expert opinion. Because he did not, his testimony on this other patent was excluded.
Because neither Wagner nor Napper used the same approach in the litigation that would be used outside of litigation, their methodology was flawed. Judge Posner thus excluded each expert’s testimony on respective patents. This conclusion raises the interesting question of to whom the expert may speak to get information to be considered when formulating the expert opinion. According to Judge Posner, reliance on a party’s technical expert is not appropriate. Thus, in what may be a surprise to many trial attorneys, the opinion teaches that a testifying expert should not rely on information obtained from another testifying expert (or perhaps even from a party employee) if the information can be obtained from independent sources.